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PAPER

PROFIT SHARING AKAD IN ISLAMIC CIVIL LAW

Submitted to :
Dr. M. Khaeruddin Hamsin, LLM.

Submitted by :
Ariski Puji Purwanto
(20160610468)
IPOLS
FACULTY OF LAW
UNIVERSITAS MUHAMMADIYAH YOGYAKARTA
2018
CHAPTER I
INTRODUCRION

A. Background
Indonesian banking world has been the presence of Islamic banking had it
long enough. But the last few years is quite rapid development of Islamic banking.
Evidenced by the many current conventional bank that opened its business unit in the
form of sharia, and also the emergence of non-bank financial institutions (NBFIs)
such as cooperative islamic sharia, BMT, insurance, etc.
With the advent of non-financial institutions of Islamic banking indicates that
public awareness of Indonesia will halal banking transactions becomes very important.
Not only in terms of borrowed funds, but also in saving funds, within the conventional
banking interest there is an advantage to the bank if the customer borrowed funds, and
is also given to customers who keep their funds in the bank as a form of remuneration
for already entrust their funds. The percentage of the interest in could have been
determined by the bank. As banks and other Islamic financial institutions requiring
Islamic products in running operations that course in accordance with the free will of
usury law.
In contrast to conventional banking in Islamic banking there is no interest, but
the results also known as profit sharing, which means the division of profits. In the
revenue-sharing contract (for results) diperbankan Shari'ah provide revenue-sharing
principle with 4 of the contract, including: Musharaka, Mudaraba, Muzarra'ah, and
Musaqah. For more details, the author will be present in the discussion section.
B. Formulation of the problem
Based on this background, the writer makes the formulation of the problem of "the
principle of revenue sharing with the contract if the popular applied by LKS?"

CHAPTER II
DISCUSSION

Akad Shari'ah main bank and most importantly agreed upon by the scholars is
an agreement with a profit sharing with the principles of Musharaka (joint venture
profit sharing) and Mudharabah (trustee profit sharing). The main characteristic
for the pattern of results is that profits and losses are shared both by the owner of
the funds and employers.1

A. Musharaka
1. Understanding
Musharaka is an agreement of cooperation between two or more
parties to a particular business in which each party contributes funds (or
charity / expertise) with the agreement that the benefits and risks will be
shared in accordance with the agreement.2
According to the terms referred to syirkah, the fuqahah differ as
follows:

1
Ascarya, Akad and Shariah Banking Products, Jakarta, King Grafindo Persada, 2015, p. 48-49

2
Muhammad Shafi Antonio, Bank Shariah From Theory Into Practice, Jakarta, Gema Insani Press,
2002, p. 90
a) According to Sayid Sabiq, Syirkah is a contract (agreement) between
persons of association in terms of capital and profits.
b) According to M. Shafi Anwar in a writing magazine formulate Ulumul
Qur'an, Syirkah is an agreement of mutual agreement between several
owners of capital for working capital in a project which is usually long
term. The risk of loss or profit is divided equally with the statement
(capital).
c) According to M. Al-Syabirin is a provision syirkah is right on
something for two or more people in a way that famous.
d) According to Shihab al-Din al-Qalyubi wa Umaira, which dimnaksud
with syirkah is the determination of rights on something for two or
more people.
e) According Taqiyuddin Imam Ibn Abi Bakr Muhammad al-Husaini,
Syirkah was like the establishment of a right to something that one for
two or more people in a way that lebihdiketahui.
f) According to Idris Ahmad said syirkah together with a reputable trade,
ie, two or more equally pledged to cooperate in trade, leaving the
respective capital in which the advantages and disadvantages of capital
calculated according to the size of each.3
2. Various Syirkah / Musharaka
Shirkah that there are two kinds, including:
a. Shirkah property rights (syarikatul Amlak), which is an alliance
between two or more persons in possession of one item with one of the
causes of ownership, such as the sale and purchase of donation or
inheritance.
b. Shirkah contract (shirkah al 'aqd), namely musyarakat contract created
by way of an agreement, in which two or more people agree that each

3
Syafe'i H. Rachmat, Fiqh Muamalah, Bandung, Faithful Reader, 2001, p. 185
of them contributes Musharaka capital, they agreed to share profits and
losses. Shirkah contract is divided into four of them:
1) Shirkah al Inan
Shirkah al Inan is contract is between two or more persons,
each party gives a portion of the total capital and participate in the
work. All parties share in the profits and losses, as agreed between
them, but the portion of each party (either in the contribution of
capital, labor or for the results) is not necessarily the same and
identical, but in accordance with their agreement. The majority of
scholars allow this type of al-Musharaka.
2) Shirkah al Mufawadlah
Shirkah al Mufawadlah is contract is cooperation between two
or more persons, each party gives a portion of the overall fund and
participate in the work. Each party memabagi advantage of the
same losses. Thus, the main requirement of this kind of
al-Musharaka is the similarity of funds provided, work, tanggng
responsibility, and the debt burden is shared by each party.
Hanafi and Maliki allow this syirkah shape, but the Shafi'i and
Hanbali schools banned it because in reality difficult to occur
equality in all its elements, and many contain gharar.
3) Shirkah al A'maal
Shirkah al A'maal is contract is the cooperation of two people
profession to accept work together and share the benefits of the job.
Hanafi, Maliki, and Hanbali Musharaka agreement and allow this
practice.
4) Shirkah al Wujuh
Shirkah al Wujuh is the cooperation contract between two or
more people who have a good repurtasi and prestige as well as
experts in the business. Musharaka type does not necessarily need
capital, because the purchases made on credit and warranty
besekutu people. Hanafi and Hanbali allow syirkah shape, but
Maliki and Shafi'i forbade it.4
The proportion of the contract dalah profit is divided according
to a predetermined agreement in the contract in accordance with
the proportion of capital included (opinion of Imam Maliki and
Shafi'i) or can be different from the proportion of their capital
include (opinion of Imam Ahmad). Meanwhile Imam Abu Hanifa
found the proportion of profits can be different from the proportion
of capital under normal conditions. Nevertheless, the partners
decided to be a sleeping partner benefits may not exceed the
proportion of the proportion of their capital.
Meanwhile losses, if there will be shared in proportion to their
respective equity (seemua scholars agree on this point). It can be
concluded that in the Musharaka profit divided by agreement of the
parties, while losses are shared in proportion to the equity
participation of each party.5
3. Type of Musharaka
a. musharaka fixed
Number and portion of capital supplied by each partner remains over
the contract period.
b. decreasing musharaka
Two-party partner for joint ownership of an asset in the form of
property, equipment, company, or other. Part assets first party, as a
financier, and then divided into several units and it was agreed that the
second party, as a client, will buy part of assets of the first unit-by-unit
periodically so that it will increase the share of assets of the second

4
Muhammad Shafi Antonio, op.cit., P. 92-93

5
Ascarya, Log.Cit., P. 51-52
party to all units belonging to the first party bought all and asset fully
owned by the second party. Profits generated in each period divided
according to ownership of assets of each party at the time.
c. musharaka mutanaqishah
That is a limited capital investment from venture partner to another
company for a certain period of time, which in the modern world can
be called venture capital.6
4. Applications in Banking
a. Project financing
Al-Musharakausually applied to project financing where the customer
and the bank together to provide funds to finance the project. Once the
project was complete, customers return the funds together for the
results that have been agreed for the bank.
b. Venture capital
In specialized financial institutions are allowed to invest in the
ownership of the company. Investment is made for a certain period of
time and after that the bank divest or sell part of its shares, either
singkaat or in stages.
5. Benefits And Risks Al-Musharaka
benefits:
a. Banks will enjoy an increase in a certain amount at the time of the
customer's business increased profits.
b. Banks do not berkwajiban pay a certain amount to the customer funding
fixed, but adjusted for income / results of operations of the bank, so the
bank will never experience the negative spread.
c. Returns financing products tailored to the cash flow / cash flow
business customers, making it easier on the customer.

6
Ibid., P. 60
d. Banks will be less and carefully look for businesses that actually lawful,
safe, and profitable,
e. The principle of the production sharing mudaraba / Musharaka is
different from the principle of fixed interest at which banks will charge
the recipient financing (customer) a fixed amount of interest generated
profit berapapaun customers, even though the losers and economic
crisis.
Risk:
a. Side stream, customers use the funds not as called for in the contract.
b. Negligent and willful misconduct
c. Concealment of profits by customers, if customers are not honest.

B. MUDHARABAH

1. Understanding
According to article 19 paragraph (1) c of Law No. 21 of 2008 stated
that:
"What is meant by mudharabah in financing is an agreement of
cooperation of a business between the first party (malik, shahibul maal, or
Islamic bank) that provides all the capital and the second party (amyl,
mudharib, or customers) that acts as the manager of the fund by dividing
profit business in accordance with the agreements set forth by islamic
banks, unless both parties make mistakes intentional, negligent, or violates
the agreement ".7
2. Various Kinds of Al-Mudharabah
In general, mudaraba divided into two types:

a. Mudharabah muthlaqah

7
amroni, Shariah Bank Role In Channeling Funds for Micro, Small and Medium Enterprises (MSMEs),
Iqtishadia, Vol. 6, No. 2, September 2013, p. 233
Transactions mudharabah muthlaqah is a form of cooperation between
shahibul maal and mudharib very broad and is not limited by the
specifications of the type of effort, time, and area businesses. In the
discussion of jurisprudence salafus pious scholars often exemplified by
the phrase ma if'al syi'ta (do as you please) of shahibul maal to
mudharib gives enormous power.8
For mudharabah mutlaqah can use two methods, namely profit
sharing or revenue sharing. If banks use profit sharing and business
suffered a loss then the entire loss is borne by shahibul maal unless
found to negligence bank as mudharib as non-fulfillment of contract. If
the bank uses the revenue sharing Shahibul mall will not bear the loss,
unless the bank liquidated smaller assets than liabilities.9
b. Mudharabah muqayyadah
Mudharabah muqayyadah or also called restricted mudaraba / specified
mudaraba is the opposite of mudhrabah muthlaqah. The mudharib
limited to specifying the type of effort, time, or place of business.
These restrictions are often reflects a general trend in entering the
shahibul maal two types of businesses.10
For mudharabah muqayyadah is where the Bank acts as an agent in
channeling the funds mudharabah muqayyadah and banks do not bear
the risk of the reporting is not carried in the balance sheet but in the
statement of changes in restricted investments. While the funds

8
Muhammad Shafi Antonio, Log.Cit., P. 95

9
Zamroni, Shariah Bank Role In Channeling Funds for Micro, Small and Medium Enterprises (MSMEs),
Iqtishadia, Vol. 6, No. 2, September 2013, hal.233

10
Muhammad Shafi Antonio, op.cit., P. 95
received and disbursed yet recognized as a deposit if the bank acts as
an agent in channeling the funds mudharabah muqayyadah but bank
risk on the distribution of these funds, the bank acts as mudharib and
reporting are carried in the balance sheet for the portion borne by the
bank.11
3. Applications in Banking
Al-Mudharabah is usually applied to the financing products and financing.
On the fund side, al-mudaraba applied to:12
a. savings deposits
b. special deposits
As for the financing, mudaraba applied to:
a. Working capital financing
b. Special investment.
4. Forms of Mudharabah
a. Bilateral Mudharabah
Is a form of mudaraba between the parties as Shahibul mall and one
other party as mudharib.
b. Multilateral Mudharabah
Is a form of mudaraba between parties as Shahibul mall and one other
party as mudharib.
c. Tiered Mudharabah
Is a form of mudaraba between the three parties. The first party as
Shahibul mall, the second party as mudharib, a third party as a final
mudharib.
d. The combination of Musharaka and Mudaraba

11
Zamroni, Ibid., hal.233
12
Muhammad Shafi Antonio, op.cit., P. 97
In a mudaraba agreement is generally assumed that the manager did
not come to invest capital, but only responsible in running the business,
while capital comes entirely from investors. However, there is a
possibility that the manager also wants to invest in this mudaraba
venture.13
5. Benefits and Risks of al-Mudharabah
benefit
a. Banks will enjoy increased revenue share at the time of the
customer's business increased profits.
b. The Bank is not obligated to pay for the results to clients regularly
funding, but adjusted for income or results of operations of the bank
until the bank will never experience the negative spread.
c. Financing payback adjusted cash flow or cash flow making it easier
on the customer's business customers.
d. Banks will be more selective and cautious (prudent) find the
business that actually lawful, safe, and profitable, because of the
advantages that concrete and actually occur that will be shared.
e. The principle of sharing in al-mudharabh or al-Musharaka is
different from the principle of fixed interest at which banks will
charge the recipient financing (customer) a fixed rate regardless of
the amount of profit generated customers, even the losers and
economic crisis.
Risk :
Side stream of customers using the funds not as called for in the contract.
a. Negligent and willful misconduct
b. Concealment of profits by customers when customers dishonestly.
C. AL-muzara'ah

1. understanding

13
Ascarya, Log.Cit., P. 68-74
Al-muzara'ah is the processing of agricultural cooperation between
landowners and tenants, where landowners provide agricultural land to the
tiller to be planted and maintained in exchange for a certain part
(percentage) of the crop.14
2. Explanation
In this context, the Islamic financial institutions to provide financing for
customers engaged in the plantation on the basis of the results of the
harvest.15
D. AL MUSAQAH

Al-musaqah is a simpler form of muzara'ah where the tiller is only responsible


for watering and maintenance. In return, the tenants are entitled to a certain ratio of
the crop.16

CHAPTER III
CLOSING

1. Conclusion
Akad pattern of results in the shari'a banking there are four principles, namely:
Musharaka, Mudaraba, Muzarro'ah, and Musaqah.
musharaka is cooperation agreement between two or more parties to a
particular business in which each party contributes funds to the agreement that the
benefits and risks will be shared in accordance with the agreement. Mudaraba is a
contract of business cooperation between the two parties where the first party
provides the entire capital, while the other party as a manager. Muzara'ah is
processing of agricultural cooperation between landowners and tenants, where

14
Op. Cit.,p. 97
15
Ibid., p. 97
16
Ibid., p. 97
landowners provide agricultural land to the tiller to be planted and maintained in
exchange for a certain part (percentage) of the crop. While Musaqah is a simpler form
of muzara'ah where the tiller is only responsible for watering and maintenance. In
return, the tenants are entitled to a certain ratio of the crop.
However, in practice the contract that is widely used in banking is Musharaka
and mudaraba. Because this contract musaqah muzara'ah and if applied in banking is
a bit complicated. Generally only applied to society and the community.

REFERENCES

Ascarya. 2015. Akad and Shariah Banking Products. Jakarta: King Grafindo Persada

Rachmat, Syafe'i H. 2001,Fiqh Muamalah. Bandung: Pustaka Setia


Shafi Antonio, Muhammad. 2002, Bank Shariah From Theory To Practice. Jakarta:
Gema Insani Press
Zamroni. 2013. The bank's role of sharia in disbursements to micro, small and
medium enterprises (SMEs). Iqtishadia. Vol.6, No.2

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